Voting-Rights Ruling: A Shameful Decision

(Special to The Root) -- Three years ago I wrote a piece for The Root entitled, "Supreme Court Saves Voting Rights Act and Itself." The occasion was the court's recent consideration of the constitutionality of Section 5 of the Voting Rights Act, which Congress had reauthorized by an overwhelming bipartisan majority in 2006. In that 2009 case the court declined to strike down the coverage formula of Section 5 of the act.

The Voting Rights Act of 1965 has been described as the "crown jewel" of civil rights legislation. Its passage was secured with the blood of courageous activists throughout the South, like Fannie Lou Hamer, who endured beatings simply for trying to register to vote in Mississippi; Medgar Evers, who was murdered by a white supremacist; students James Chaney, Andrew Goodman and Michael Schwerner, who went missing at the start of Freedom Summer 49 years ago; and black voters in Selma, Ala., who were beaten on the Edmund Pettus Bridge.

It's hard to imagine a piece of legislation with a greater pedigree and for which more people have fought and died than the Voting Rights Act. So when the court resisted calls to weaken the act in that 2009 case, I argued that Chief Justice John Roberts, then in office only four years, wisely chose not to take the risk of tarnishing the court's legitimacy -- and his own as a new chief -- by usurping Congress' authority and gutting one of the most important civil rights statutes ever enacted.

But I also suggested that the decision preserving the act's core provisions had been carefully stitched, weaving together an uncertain majority. The implication was that one day soon, the conservative majority on the court might be emboldened enough to do real harm to the act.

That day has come. On Tuesday, in a 5-4 decision in Shelby County, Alabama v. Holder (pdf), the Supreme Court struck down a provision of the act. Under Section 5 of the Voting Rights Act, Congress designated particular jurisdictions in the United States that must obtain permission from a federal authority (either the Department of Justice or a federal court) before they enact voting changes that might have the effect of discriminating against minority voters. The jurisdictions are largely located in the South, although several districts in New York and parts of Alaska and Arizona are included as well.

The formula that designates the jurisdictions to be covered is set out in Section 4 of the act. The court has declared that formula and Section 4 unconstitutional. This essentially hollows out the foundation of Section 5.

The court's decision is a shocking usurpation of power from Congress, which in 2006 held hearings over the course of nine months, heard from almost 100 witnesses and amassed a 15,000-page record. The result of Congress' searching inquiry was its determination that voting discrimination continued in the jurisdictions identified in Section 4. In fact, the record was replete with examples of voting discrimination in those areas, as Justice Ruth Bader Ginsburg set out Tuesday in her dissent from the court's opinion.

For example, Congress found that the city of Calera in Shelby County, discriminated when it gerrymandered the black district to reduce the population from 70 percent African American to 29 percent. Congress learned that once blacks won a majority of seats on the Charleston, S.C., school board in 2003, Charleston County proposed switching from a single-member district to at-large voting for the school board and failed to inform any of the black members of the board of the proposed change. In 2001 in Kilmichael, Miss., the all-white Town Council decided to simply cancel the town's election once a number of blacks decided to run and data showed that the jurisdiction's population had become majority black.

In each of these cases, Section 5 prevented the discriminatory plans from coming to fruition. Today that protection has been removed by a five-member majority on the court that substituted its judgment for the record painstakingly amassed by Congress. Ginsburg, in her dissenting opinion, rightly describes the majority's decision as an act of "hubris."

I cannot express how devastating this decision is for minority voters in cities, towns and counties all over this country. In essence, the voting protections of 48 years have been removed with a stroke of the court's pen.

Just as an example of how emboldened Southern jurisdictions are likely to become, the attorney general of Texas said on Tuesday on Twitter that the state's proposed voter-ID law, which has been called the most onerous in the nation and is currently in litigation under Section 5, will be enforced "immediately." They're already tweeting away our voting rights with cavalier disregard.

Congress must create a new coverage formula to ensure that minority voters are protected under Section 5 of the act. We know that Congress is divided. But it was divided in 1965 when it passed the Voting Rights Act, and in 1975, 1982 and 2006 when it reauthorized the act with bipartisan majorities. We will not accept "Washington deadlock" as an excuse for inaction.

But Congress will act only if voters all over this country of every race recognize that the very legitimacy of democratic participation in this country is at stake. It is up to Americans to march, to call, to press Congress to use the power it was granted under the 15th Amendment and restore protections for minority voters.

We'll be in the courts using the remaining provisions of the Voting Rights Act and the Constitution to push back hard against efforts to disenfranchise minority voters. But to win, we will need to be in the courts as well as in the streets, on the airwaves and in the halls of Congress. Starting now.